Citation Nr: 0811063
Decision Date: 04/03/08 Archive Date: 04/14/08
DOCKET NO. 02-10 887A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to an initial rating in excess of 60 percent
for degenerative disc disease (DDD) of the lumbar spine.
2. Entitlement to a total disability evaluation for
compensation purposes based on individual unemployability
(TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARINGS ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The veteran had active service from November 1959 to June
1960.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) from decisions of January 2002 and July 2004 of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Newark, New Jersey.
Historically, a January 2002 rating decision granted service
connection for lumbar DDD and assigned an initial 20 percent
evaluation, effective December 30, 1999. Subsequently, an
October 2003 rating decision increased the evaluation to 60
percent effective December 30, 1999, under the old rating
criteria (which have been revised during this appeal). A
July 2004 rating decision denied entitlement to a TDIU
rating.
The Board remanded this case in September 2006 to afford the
veteran the opportunity to testify at a hearing at the RO
before the BVA. That hearing was conducted later in
September 2006.
A February 2007 Board decision denied service connection for
a left shoulder disorder and for sleep apnea and also denied
entitlement to an initial rating in excess of 10 percent for
radiculopathy of the right lower extremity and to an initial
rating in excess of 10 percent for radiculopathy of the left
lower extremity. That decision also granted an increase from
a noncompensable rating for residuals of stress fracture of
right heel to a 10 percent disability rating. The issues of
entitlement to an initial rating in excess of 60 percent for
DDD of the lumbar spine and to TDIU rating were remanded.
Those issues have now been returned for appellate
consideration.
A March 2007 rating decision effectuated the grant of a 10
percent disability rating for residuals of stress fracture of
right heel, effective December 30, 1999 (date of receipt of
the veteran's original postservice VA claim), which resulted
in an increase in the combined disability evaluation from 60
percent to 70 percent.
Lastly, based on the veteran's testimony, it appears he
intends to claim or may otherwise be entitled to special
monthly compensation based on the regular aid and attendance
of another. This matter is referred to the RO for
consideration.
FINDINGS OF FACT
1. The veteran's service-connected lumbar spine disability
results in severe degenerative disc disease and limitation of
motion, but is not productive of unfavorable ankylosis of the
entire spine.
2. The veteran's service connection disabilities are DDD of
the lumbar spine, rated 60 percent disabling; radiculopathy
of the left lower extremity, rated 10 percent disabling;
radiculopathy of the right lower extremity, rated 10 percent
disabling; residuals of stress fracture of right heel, rated
10 percent disabling, for a combined disability evaluation,
including a bilateral factor of 2.7 percent, of 70 percent.
3. The veteran's service-connected disabilities are of such a
nature and severity as to preclude him from gainful
employment.
CONCLUSIONS OF LAW
1. The criteria for an initial evaluation in excess of 60
for DDD of the lumbar spine percent are not met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159,
3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5293 &
5243 (2002-2007).
2. The requirements for a total evaluation based on
individual unemployability due to service-connected
disabilities have been met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.16
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA describes VA's duties to notify and to assist
claimants in substantiating VA claims. See 38 U.S.C.A.
§§ 5103, 5103A and 38 C.F.R § 3.159. This notice is only
required to be given in sufficient time to enable a claimant
to submit relevant evidence. The notice may be generic
without identifying evidence specific to the individual
claim, although it must be tailored to the nature of the
claim. It does not extend throughout the claim process.
Wilson v. Mansifeld, 506 F.3d 1055, 1059-60 (Fed. Cir. 2007).
Duty to Notify
Under 38 U.S.C.A. § 5103(a) the VA must notify a claimant of
the information and evidence needed to substantiate a claim,
which information and evidence the VA will obtain, and which
the claimant must provide. The VA must request any evidence
in a claimant's possession that pertains to the claim. See
38 C.F.R. § 3.159.
But, the VA is not required to provide a predecisional
adjudication of what evidence is needed to grant a claim
because "the duty to notify deals with evidence gathering,
not analysis of already gathered evidence" nor is the VA
required to provide notice "upon receipt of every piece of
evidence or information." Locklear v. Nicholson, 20 Vet.
App. 410, 415 (2006).
In service connection claims, the notice must also state what
is needed to substantiate all five elements of a service
connection claim, which are: 1) veteran status; 2) existence
of a disability; (3) a connection between the veteran's
service and the disability; 4) degree of disability; and 5)
effective date of the disability. Dingess v. Nicholson,
19 Vet. App. 473 (2006).
The VCAA notice was intended to be provided before the
initial unfavorable adjudication by the RO.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
A review of the record shows the veteran was provided with
pre-adjudication VCAA notice on the claim for service
connection for lumber DDD by letter, dated in April 2001.
The veteran was notified of the evidence needed to
substantiate a claim of service connection, namely, evidence
of an injury, disease, or event causing an injury or disease
during service; evidence of current disability; and evidence
of a relationship between the current disability and the
injury, disease, or event causing an injury or disease during
service. The veteran was also notified that the VA would
obtain service records, VA records, and records from other
Federal agencies, and that he could submit private medical
records or authorize the VA to obtaining private medical
records on his behalf.
Here, the claimant was notified of the law and regulations
governing effective dates and rating service-connected
disorders by letter associated with the June 2006
supplemental statement of the case.
As for content of the VCAA notice, the documents
substantially comply with the specificity requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate a claim and the relative duties of
VA and the claimant to obtain evidence), of Charles v.
Principi, 16 Vet. App. 370 (2002) (identifying the document
that satisfies VCAA notice); and, of Pelegrini, supra
(38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19
Vet. App. 473 (2006) (notice of the five elements of a
service connection claim), aff'd Hartman v. Nicholson, ---
F.3d ----, 2007 WL 1016989 (C.A. Fed. 2007).
The VCAA notice requirements in a claim for increase include
notice of the type of evidence needed to substantiate a
claim, namely, evidence demonstrating a worsening or increase
in severity of the disability and the effect that worsening
has on the claimant's employment and daily life. Also, if
the Diagnostic Code under which the claimant is rated
contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by
demonstrating a noticeable worsening or increase in severity
of the disability and the effect of that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the VA must provide at least
general notice of that requirement. Vasquez-Flores v. Peake,
22 Vet. App. 37 (2008).
Where, as here, service connection has been granted and an
initial disability rating has been assigned, the claim has
been more than substantiated, it has been proven, thereby
rendering 38 U.S.C.A. § 5103(a) notice no longer required
because the purpose that the notice was intended to serve has
been fulfilled. Furthermore, once a claim for service
connection has been substantiated, the filing of a notice of
disagreement with the RO's rating of the disability does not
trigger additional 38 U.S.C.A. § 5103(a) notice.
Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a)
and § 3.159(b)(1) is no longer applicable in the claim for an
initial rating in excess of 60 percent for the service-
connected DDD of the lumbar spine. Dingess at 19 Vet. App.
473.
Duty to Assist
As required by 38 U.S.C.A. § 5103A, VA has made reasonable
efforts to identify and obtain relevant records in support of
the claims.
The veteran was afforded the opportunity to testify at RO
hearings in March 2003 and May 2005 as well as at a personal
hearing before the BVA in September 2006.
The RO has obtained the veteran's service medical records and
VA treatment records. The veteran has submitted private
medical treatment records. Records from the Social Security
Administration are also on file. The veteran has not
identified any additionally available evidence for
consideration in his appeal. In fact, at the September 2006
BVA hearing the veteran testified that there were no
outstanding private clinical records (although since then a
May 2007 private physician's statement has been received).
Transcript at 17.
The veteran has been afforded several VA rating examinations
for the claim for DDD of the lumbar spine. McLendon v.
Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326
F.3d 1381 (Fed. Cir. 2003). 38 U.S.C.A. § 5103A(d)(2); 38
C.F.R. § 3.159(c)(4)(i).
As there is no indication that the veteran was unaware of
what was needed for claim substantiation nor any indication
of the existence of additional evidence for claim
substantiation, the Board concludes that there has been full
VCAA compliance.
Lastly, in light of the allowance of a TDIU rating any VCAA
noncompliance as to that issue is nonprejudicial.
DDD of the Lumbar Spine
Disability evaluations are determined by comparing the
veteran's symptomatology with the criteria set forth in
Diagnostic Codes (DCs) in VA's Schedule for Rating
Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38
C.F.R. Part 4. Rating a service-connected disability
requires that it be viewed historically, that reports be
reconciled into a consistent picture to accurately reflect
the elements of the disability and that the disability be
described in terms of the person's function under the
ordinary conditions of daily life including employment. 38
C.F.R. §§ 4.1, 4.2, 4.10. A higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria for that rating; otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7. Not all disorders will
show all the findings specified for a particular disability
rating, especially with the more fully described grades of
disabilities but coordination of ratings with functional
impairment is required. 38 C.F.R. § 4.21. When there is an
approximate balance of positive and negative evidence the
benefit of the doubt is to be resolved in the veteran's
favor. 38 U.S.C.A. § 5107(b).
The Board will consider whether separate ratings may be
assigned for separate periods of time based on facts found, a
practice known as "staged ratings," whether it is an initial
rating case or not. Fenderson v. West, 12 Vet. App. 119,
126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510
(2007).
Pertinent Rating Criteria
The criteria for rating intervertebral disc syndrome (IVDS),
38 C.F.R. § 4.71a, DC 5293, were revised effective September
23, 2002, to provide for either a single evaluation based on
incapacitating episodes or separate ratings, for combination
under 38 C.F.R. § 4.25, for chronic orthopedic and neurologic
manifestations, whichever results in a higher evaluation.
Other than IVDS under DC 5293, the criteria for evaluating
spinal disabilities DCs 5285 through 5295 (2002) ("the old
criteria") were revised effective September 26, 2003, at
which time the DCs were renumbered, including the renumbering
DC 5295 to DC 5237 and adding DC 5242 for degenerative
arthritis (yet also retaining DC 5003 for degenerative
arthritis). A General Rating Formula for Diseases and
Injuries of the Spine was established, to which Note 6
provides that IVDS is to be rated either under (1) the
General Rating Formula, as to which Note 1 provides that
associated objective neurologic abnormalities are separately
rated under an appropriate DC, or (2) under an established
Formula for Rating IVDS Based on Incapacitating Episodes
(incorporating the 'incapacitation' criteria of the revised
DC 5293). See 68 Fed. Reg. 51,454 (Aug. 27, 2003), codified
at 38 C.F.R. § 4.71a, DC 5243 (2004) ("the new criteria").
The veteran's claim for service connection for his now
service-connected low back disorder was received in December
1999, prior to the revision.
When law or regulation change the most favorable version
applies and where an effective date is specified but there is
no provision for retroactive applicability, application of
the revised regulations prior to the stated effective date is
precluded. VAOPGCPREC 7-2003 (Nov. 19, 2003) (addressing the
holding in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003)
overruling Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991)).
See also VAOGCPREC 3-2000 (Apr. 10, 2000); VAOPGCPREC 11-97
(Mar. 25, 1997); 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114.
So, here, both the old and the new rating criteria must be
applied. In rating the spinal disorder for the period prior
to the effective dates of the respective revisions, only the
old rating criteria may be applied, but both the old and the
new rating criteria, whichever is most beneficial to the
veteran, will be applied for the period beginning as of the
respective effective dates.
Prior to revision of the schedular rating criteria on
September 23, 2002, a 60 percent rating, which is the highest
possible rating under this code, was warranted for pronounced
IVDS manifested by persistent symptoms compatible with
sciatic neuropathy with characteristic pain and demonstrable
muscle spasm, absent ankle jerk, or other neurological
findings appropriate to the site of the diseased disc, and
little intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (as
in effect prior to September 23, 2002).
VAOGCPREC 36-97 (Dec. 12, 1997) requires that in determining
disability evaluations under DC 5293, 38 C.F.R. §§ 4.40
(functional loss may be due to pain) and 4.45 (pain on motion
is a factor in joint disability) must be considered because
nerve defects and pain may limit spinal motion, even if the
current rating were to correspond to the maximum rating
(under the criteria in effect prior to September 26, 2003)
for limited spinal motion. It was also held that 38 C.F.R.
§ 3.321(b)(1), entitlement to an extraschedular rating, must
also be considered. Sanchez-Benitez v. West, No. 00-7099,
slip op. at 10 and 11 (Fed. Cir. August 3, 2001) (case
remanded for failure to discuss 38 C.F.R. § 3.321(b)(1)
extraschedular consideration).
As indicated, for the period prior to September 23, 2002,
only the old IVDS rating criteria under DC 5293 may be
applied, but either the old or the new IVDS rating criteria
(whichever are most beneficial), may be applied for the
period beginning September 23, 2002. 38 U.S.C.A. § 5110(g);
38 C.F.R. § 3.114.
The IVDS criteria prior to September 23, 2002, focused on
subjective classifications of the overall degree of
impairment from IVDS. As of September 23, 2002, the
pertinent considerations - either preoperatively
or postoperatively, are (1) whether the veteran has had
incapacitating episodes during the immediately preceding 12
months and, if so, the total duration of them, or (2) whether
he should receive a higher rating based on a combination of
the neurologic and orthopedic manifestations of his
disability under 38 C.F.R. § 4.25. Whichever method results
in the higher evaluation is the one that must be used.
When rating based on incapacitating episodes, if there are
incapacitating episodes having a total duration of at least
six weeks during the past 12 months, a maximum 60 percent
rating is warranted. No rating higher than 60 percent is
provided for on the basis of incapacitating episodes.
An incapacitating IVDS episode is a period of acute signs and
symptoms requiring bed rest prescribed by a physician and
treatment by a physician. Note 1 to the revised DC 5293.
Supplementary Information in the published final regulations
states that treatment by a physician would not require a
visit to a physician's office or hospital but would include
telephone consultation with a physician. If there are no
records of the need for bed rest and treatment, by
regulation, there were no incapacitating episodes. 67 Fed.
Reg. 54345, 54347 (August 22, 2002).
When assessing the severity of a musculoskeletal disability
that, as here, is at least partly rated on the basis of
limitation of motion, VA must also consider the extent the
veteran may have additional functional impairment above and
beyond the limitation of motion objectively demonstrated,
such as during times when his symptoms are most prevalent
("flare-ups") due to the extent of his pain
(and painful motion), weakness, premature or excess
fatigability, and incoordination - assuming these factors
are not already contemplated by the governing rating
criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995);
see also 38 C.F.R. §§ 4.40, 4.45, 4.59.
The revised spinal rating criteria created a General Rating
Formula for Diseases and Injuries of the Spine, which uses
more objective criteria and other pertinent considerations
with or without symptoms such as pain (radiating or not),
stiffness, or aching and thus encompass and take into account
these symptoms and remove any requirement that there be any
of these symptoms to assign any evaluation. 68 Fed. Reg. at
51454 - 51455 (August 27, 2003). They provide for ratings
based on limitation of motion of a particular spinal segment
in either forward flexion or the limitation of the combined
range of motion of that spinal segment, either favorable or
unfavorable ankylosis, or with respect to the entire spine if
there is loss of more than 50 percent vertebral body height
due to vertebral fracture or muscle spasm and guarding.
Note 2 to the General Rating Formula provides that normal
forward flexion of the thoracolumbar spine is to 90 degrees,
extension is to 30 degrees, left and right lateral flexion
as well as left and right lateral rotation are to 30
degrees. The combined range of motion refers to the sum of
these ranges of motion and the normal combined range of
motion of the thoracolumbar spine is 240 degrees. The
normal ranges of motion for each component of spinal motion
provided in this note are the maximum that can be used for
calculation of the combined range of motion.
A 40 percent rating is warranted when forward flexion of the
thoracolumbar spine is to 30 degrees or less; or, there is
favorable ankylosis of the entire thoracolumbar spine. A 50
percent rating is warranted for unfavorable ankylosis of the
entire thoracolumbar spine. A 100 percent rating is
warranted if there is unfavorable ankylosis of the entire
spine. (See Note 5 for descriptions of favorable and
unfavorable ankylosis).
Ankylosis is immobility and consolidation of a joint due to
disease, injury or surgical procedure. Lewis v. Derwinski, 3
Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4
Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet.
App. 218, 221 (1995). Ankylosis is stiffening or fixation of
a joint as the result of a disease process, with fibrous or
bony union across the joint. Dinsay v. Brown, 9 Vet.
App. 79, 81 (1996).
Background and Evidence
Dr. Antonacci reported in September 1999 that on examination
the veteran had pain on hyperextension of the back, relieved
by flexion. The impression was spinal stenosis. An October
1999 private lumbar MRI revealed a large herniation at L4-5
that was migrating caudally. It displaced the thecal sac and
encroached on both nerve roots. There was a smaller L5-S1
herniation as well. In September 2000 Dr. DeGiacomo reported
that the veteran had severely disabling degenerative
arthritis and sciatica of the back.
On a VA neurology examination in August 2001 there was
flattening of the veteran's lumbar spine and 10 percent
limitation of motion of motion of the lumbar spine. There
was very mild muscle spasm. X-rays of November 1988 revealed
disc space narrowing at L5-S1. The pertinent diagnosis was a
chronic low back strain.
On a VA spinal examination in August 2001 there was no muscle
spasm. There was limitation of motion of the lumbar spine.
The pertinent diagnosis was low back degeneration.
A September 2001 VA outpatient treatment reflects that the
veteran had incontinence of urine that might be related to
his sleep apnea.
At the March 2003 RO hearing the veteran testified that due
to low back problems he had difficulty walking any great
distance and had difficulty getting out of bed in the morning
as well as standing for long periods of time. Transcript at
2. He took medication for relief of back pain. Transcript
at 5. In the past he had tried using a back brace but it was
uncomfortable. He used a walker as an ambulatory aid due to
the combination of his disabilities of the low back, legs,
and right foot. Transcript at 6-7. If he fell down, he
could not arise unassisted and, so, carried a whistle to
signal for help. Transcript at 9. He was now retired.
Transcript at 25.
In September 2003 Dr. Massoud reported treating the veteran
for lumbar DDD and lumbar radiculitis with medication and
physical therapy.
On a VA general medical examination in May 2004 the veteran's
gait appeared normal but he used a walker for balance. On VA
orthopedic examination in May 2004 it was noted that the
veteran could walk a short distance with a walker or cane as
stand by help. He needed help in toileting and washing his
body. He had retired as a salesman in 1997. On examination
his gait was antalgic. There was limitation of motion of the
thoracolumbar spine. Repeated motion increased his pain
tremendously. There was muscle spasm and generalized
tenderness but no fixed deformity or scoliosis. There was no
sensory deficit and motor strength was essentially 5/5.
There was no vertebral fracture. The diagnoses were chronic
low back pain at L4-5-S1, lumbar DDD at multiple levels, and
a lumbar strain.
The report of a private MRI in September 2004 shows L4-L5 and
L5-S1 degenerative herniations with encroachment of the right
L4 nerve root and the left L5 root.
At the May 2005 RO hearing the veteran testified that due to
his service-connected low back disorder he had often fallen.
His wife assisted him in attending to the wants of nature.
He had difficulty getting out of a chair. Transcript at 3.
He had used a walker for a couple of years. Transcript at 4.
He had problems with his balance and numbness of his legs.
Transcript at 5.
On a December 2005 VA neurological examination there was
tenderness at L4-5 lumbar paravertebral muscles. Motor
strength of the lower extremities, both proximally and
distally, was 4/5 and there was no lower extremity atrophy.
Deep tendon reflexes were hypoactive all over and 1+
symmetrical on both upper and lower extremities. He had
decreased pinprick and light touch sensation symmetrically in
a stocking fashion. The diagnoses were chronic lower back
strain, bilateral lumbosacral radiculopathy, and peripheral
neuropathy of both upper and lower extremities secondary to
type 2 diabetes mellitus. The examiner opined that it was at
least as likely as not the current lumbosacral radiculopathy
pain was secondary and related to his degenerative joint
disease of the lumbosacral spine.
On a VA orthopedic examination in December 2005 it was noted
that the veteran had diabetes. He complained of intermittent
urinary incontinence but his bowels were intact. He had
received nerve blocks from a private physician with only
limited benefit. His gait was unsteady. He had not had back
surgery. He claimed to be incapacitated almost every day
during the past year. On examination he declined to perform
range of motion tests. He had mild tenderness to palpation
the paraspinal muscles, bilaterally. He was able to transfer
from his wheelchair to a standing position without apparent
difficulty. The examiner noted that May 2004 VA X-rays
revealed disc space narrowing and endplate sclerosis at L4-L5
and L5-S1. There was no evidence of fracture or subluxation.
The examiner felt that both obesity and the aging process
also contributed to the veteran's low back and bilateral
lower extremity pain.
On another VA examination in December 2005, to evaluate the
veteran's radiculopathy, it was found that he had some spasm
at the L4-5 region. Flexion was to only 45 degrees, both
lateral flexions were to 10 to 15 degrees, and extension was
to 12 degrees. It was felt that his peripheral neuropathy of
the upper and lower extremities was due to type 2 diabetes
mellitus but other diagnoses were chronic low back strain and
bilateral lumbosacral radiculopathy.
In September 2006 Dr. DeGiacomo reported treating the veteran
for back and leg pain.
At the September 2006 BVA hearing the veteran's wife
testified that he had last worked 9 years ago as the manager
of a monument company that made headstones. Transcript at 4.
The veteran testified that had been employed at that job for
18 years. Transcript at 5. He had left his employment
because of impairment due to his low back disability.
Transcript at 6. He took pain medication. Transcript at 8.
He had fallen because of problems with his legs. He had
numbness of his legs. Transcript at 9. He had used a walker
for the last year or two and he used a back brace when at
home. Transcript at 11. He had received Social Security
Administration disability benefits but this was switched to
retirement benefits when he reached age 65. He had received
those disability benefits due to his back, sleep apnea, and
shoulder problems. Transcript at 14.
On a VA examination in May 2007 it was noted that the veteran
used a cane, a walker, and wore a back brace. He reported
that he was unable to work and had not worked in
approximately 10 years. He attended the examination in a
wheelchair. He had constant back pain without flare-ups or
incapacitating episodes. He reported that he was unable to
walk or do any work around the house. He had no sensation
changes and no bowel or bladder changes. He stated that he
occasionally had difficulty making it to the bathroom in time
because of his difficulty walking. He had not had any recent
physical therapy. Past epidural injections had not provided
relief from pain.
On examination the veteran did not give a full effort on
lower extremity examination, stating that he was in too much
pain. He was able to stand and walk. There was swelling of
the lower extremities. Motor strength, grossly, was -5/5,
distally and proximally. Deep tendon reflexes were 1/4.
Muscle tone was normal. He had some swelling over the right
ankle. There was no axial tenderness or deformities of the
lumbosacral spine. Examination of the spine was limited
because the veteran complained of having too much pain. He
had difficulty standing. Although it was stated that he
refused range of motion testing, flexion was recorded to be
to 10 degrees, extension to approximately 10 degrees, right
lateral bending was to 5 degrees, left lateral bending was to
10 degrees, rotation to the right was to 10 degrees, and
rotation to the left was to 5 degrees. He complained of pain
in all planes of motion. There seemed to be significant
symptom magnification. Straight leg raising was negative.
As to any ankylosis of the lumbosacral spine, the examiner
stated that this could not be determined due to the veteran's
refusal to perform range of motion testing. The assessment
was a lumbar sprain/strain, lumbar degenerative disc disease,
and a right ankle sprain/strain. The examiner opined that
the veteran should be able to engage in sedentary work, e.g.,
desk work, light duties, sitting, and standing, in the nature
of office work. It was suggested that he not engage in heavy
physical employment and no lifting or pulling of greater than
25 lbs. and, also, that any type of physical labor should be
avoided.
Analysis
Here, there is no evidence of unfavorable ankylosis of the
entire spine which would warrant a 100 percent schedular
rating on the basis of the new spinal rating criteria, which
is the only evaluation higher than the current, an initial,
60 percent disability rating. A rating in excess of 60
percent was not provided for under the old spinal rating
criteria or under the old criteria for rating IVDS.
This leaves only the matter of whether a combination of
orthopedic and neurologic symptoms would result in a higher
rating. In other words, separate ratings may be assigned for
radiculopathy of a lower extremity due to the IVDS. Here,
this has already been done, with a 10 percent rating being
assigned for radiculopathy of each lower extremity.
Moreover, the proper evaluation for the radiculopathy of each
lower extremity is not now before the Board, having been
adjudicated in the Board's February 2007 decision.
Additionally, a rating in excess of 60 percent is not
provided for under the new IVDS rating criteria. Moreover,
there is no evidence of a vertebral deformity which would
warrant the addition of an extra 10 percent to the current 60
percent disability rating.
In sum, the evidence simply does not establish that the
veteran's service-connected lumbar disability is of such
severity as to warrant a rating in excess of the current and
initial 60 percent rating at any time during this appeal.
The veteran also is not shown to warrant consideration for an
extra-schedular rating for the service-connected disorder at
issue under the provisions of 38 C.F.R. § 3.321(b)(1). He
has not been recently hospitalized on account of his low back
disability and the disorder is not affirmatively shown to be
of such a nature as to otherwise render impractical the
application of the regular schedular standards. Admittedly,
his overall functional impairment may hamper his performance
in some respects, but certainly not to the level that would
require extra-schedular consideration since those provisions
are reserved for very special cases of impairment that simply
is not shown here. Consequently, the Board does not have to
remand this case to the RO for further consideration of this
issue. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996);
Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown,
8 Vet. App. 218, 227 (1995).
TDIU
Total disability ratings are authorized for any disability-
or combination of disabilities-for which the Rating Schedule
prescribes a 100 disability evaluation, or, with less
disability, if certain criteria are met. Where the schedular
rating is less than total, a total disability rating for
compensation purposes may be assigned when the disabled
person is unable to secure or follow a substantially gainful
occupation as a result of his disability(ies)-provided that,
if there is only one such disability, it shall be ratable at
60 percent or more, or if there are two or more disabilities,
there shall be at least one ratable at 40 percent or more,
and sufficient additional disability to bring the combined
rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341,
4.15, 4.16; see also Fluharty v. Derwinski, 2 Vet. App. 409,
411 (1992); Hatlestad (I) v. Derwinski, 1 Vet. App. 164, 165
(1991).
The veteran is service-connected for DDD of the lumbar spine,
rated 60 percent disabling; radiculopathy of the left lower
extremity, rated 10 percent disabling; radiculopathy of the
right lower extremity, rated 10 percent disabling; residuals
of stress fracture of right heel, rated 10 percent disabling.
There is a combined disability evaluation, including a
bilateral factor of 2.7 percent, of 70 percent.
While the regulations do not provide a definition of
"substantially gainful employment," VA Adjudication Procedure
Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the
term as "that which is ordinarily followed by the nondisabled
to earn their livelihood with earnings common to the
particular occupation in the community where the veteran
resides." In Faust v. West, 13 Vet. App. 342 (2000), the
Court defined "substantially gainful employment" as an
occupation that provides an annual income that exceeds the
poverty threshold for one person, irrespective of the number
of hours or days that the veteran actually works and without
regard to the veteran's earned annual income [ ] ." Other
factors to be considered in determining whether a veteran is
unemployable are his level of education, his employment
history, and his vocational attainment.
See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992); Ferraro
v. Derwinski, 1 Vet. App. 326, 331-332 (1991).
In VA Form 21-8940, application for a total rating, in
November 2003 the veteran reported having four years of high
school education. He had last worked in March 1997. He
reported that he could not stand for long due to constant
pain in his back, legs, and feet. He had great difficulty
even getting in and out of a car.
The veteran has been awarded disability benefits by the
Social Security Administration, although that award also
considered disabilities for which the veteran is not service-
connected, i.e., his nonservice-connected diabetes,
hypertension, left shoulder disorder, and sleep apnea. For
example, Dr. DeGiacomo reported in April 1998 that the
veteran had sleep apnea and was considered totally disabled
from gainful employment and should be so considered for an
indefinite time.
It is quite apparent from the relevant evidence of record
that the combination of service-connected and nonservice-
connected disabilities renders the veteran unemployable.
However, the determinative issue is whether the service-
connected disabilities, alone, preclude obtaining or
retaining substantially gainful employment. That is to say,
the conditions that are not service connected cannot serve as
a basis for granting the claim for a TDIU; rather,
unemployability must be irrespective of these nonservice-
connected conditions.
In short, the question here is whether the service-connected
disabilities alone preclude substantially gainful employment.
On VA orthopedic examination in May 2004 it was felt that the
veteran was not employable due to many factor, mainly his
medical factor, depression and particularly his back problem.
In August 2004 Dr. DeGiacomo reported that he had treated the
veteran for intermittent heel and back pain since 1979, which
had progressed to be severe disabling degenerative arthritis
and sciatica of the back. Due to this, he was not able to
work. This is in contrast to the VA orthopedic examination
in December 2005 when an examiner felt that the veteran
should be able to perform sedentary employment.
In August 2006, and again in May 207, Dr. Prakhina reported
that the veteran was being treated for lumbar disc
herniation, sacroiliatis [sic], and radiculopathy. He was
totally and permanently disabled from any gainful employment.
It is clear that the physician meant that the disabilities
listed in his statements were the factors causing the
veteran's inability to obtain gainful employment.
Also, a VA physician reported in November 2007 that the
veteran was being treated for chronic bilateral L4-5
radiculopathy, sensorineural peripheral neuropathy affecting
his lower extremities, as shown on a private EMG examination,
and L4-5, L5-S1 disc herniations, as shown on an MRI.
Secondary to these findings, the veteran would be unable to
sustain gainful employment because of his chronic
disabilities.
The VA outpatient treatment records of November 2007 include
a statement by a physician that the veteran and his wife had
been interviewed and, together with another VA physician, the
veteran had been examined. It was opined that the veteran
was not able to work due to his current multiple disabling
medical and neurologic conditions.
Absent affirmative evidence of employability, mere
speculation as to a claimant's employability cannot form the
basis for the Board's denial of a TDIU rating. See Bowling
v. Principi, 15 Vet. App. 1, 8 - 9 (2001); James v. Brown, 7
Vet. App. 495, 497 (1995) (reversing denial of § 4.16(a)
TDIU-rating claim when Board was not convinced that there
were not some jobs that the applicant could do but did not
cite any evidence in support of its conclusion); Brown v.
Brown, 4 Vet. App. 307, 309 (1993) (reversing denial of
§ 4.16(a) TDIU-rating claim because '[t]he BVA, in
speculating on [the veteran's] employability, did not point
to a single piece of evidence supporting its conclusion that
the veteran is able to pursue substantially gainful
employment'). '[T]o merely allude to ... [an] occupational
history, attempt in no way to relate these factors to the
disabilities of the appellant, and conclude that some form of
employment is available, comes very close to placing upon the
appellant the burden of showing he can't get work'. Gleicher
v. Derwinski, 2 Vet. App. 26, 28 (1991)." Knowles v.
Principi, 19 Vet. App. 535, 2004 WL 1043725 (Vet. App.).
In deciding whether the veteran is unemployable due to the
various disabilities related to his service in the military,
it is the Board's obligation to weigh any contrasting or
conflicting medical diagnoses or opinions. See Schoolman v.
West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet.
App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429,
433 (1995).
When the impact of the veteran's service-connected
disabilities of the right foot and each leg are combined with
the severe impairment from his service-connected lumbar DDD,
it is the judgment of the Board that the veteran's service-
connected disorders preclude substantially gainful
employment. In reaching this conclusion, the Board has
considered the conflicting opinions as to the veteran's
employability and finds that the evidence is so evenly
balanced that with the favorable resolution of doubt in the
veteran's favor, the claim for a TDIU rating must be granted.
Accordingly, a TDIU rating is warranted.
ORDER
An initial rating in excess of 60 percent for DDD of the
lumbar spine is denied.
Subject to the provisions governing the award of monetary
benefits, a total evaluation based on individual
unemployability due to service-connected disabilities is
granted.
____________________________________________
RAYMOND F. FERNER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs